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RECENT DEVELOPMENT
ENVIRONMENTAL ACTIVISM IN THE FORM
OF RESIDENTIAL SOLAR PANELS AND THE
RESULTING CONFLICTS FOR THE 21ST
CENTURY
As many environmentally-conscious citizens have become
dissatisfied with the current progress toward the mass
production of renewable energy, a large group of people have
taken environmental activism into their own backyards. This
has not occurred without a new set of conflicts. Due to the
emergence of solar panels in residential settings, many
homeowners have replaced the saying “not in my back yard” with
“not in my neighbor’s backyard.” While these disputes are still in
their infancy, it is important to consider the nature of these
conflicts, as well as their political and legal implications. This
paper examines some of the typical examples of the laws and
cases that have emerged as a result of the conflicts surrounding
residential solar technology installation.
I. SOLAR ENERGY EMERGES AS AN ALTERNATIVE TO GRID
ELECTRICITY
Solar energy production in the residential setting became
nationally prominent in the late 1990s with President Clinton’s
“Million Solar Roofs” Initiative.1 This Initiative sought to
achieve the installation of photovoltaic (“PV”) technology on one
million roofs by 2010.2 As part of this effort, the Department of
Energy under the Clinton Administration created a finance
program to assist consumers attempting to buy PV products and
1.
NAT’L RENEWABLE ENERGY LAB., U.S. DEP’T OF ENERGY, PHOTOVOLTAIC
ENERGY
PROGRAM
OVERVIEW
2
(1998),
available
at
http://www.nrel.gov/docs/legosti/fy98/23546.pdf.
2.
Id. at 2.
330
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also engaged in an effort to identify mortgage lenders agreeable
to allowing consumers to finance homes that were energy
independent.3 The resulting mortgage market has made singlefamily housing consumers an area of high potential growth for
the solar industry.4 In addition to federal action in this area,
many states have created tax incentives (totaling greater than
$300 million by 2006) and other laws to encourage homeowners
to install residential PV panels.5
II. STATE LAW REGARDING RESIDENTIAL SOLAR DEVICES
At least the following eleven states currently have laws
regarding the installation of solar energy devices: Arizona,
California, Colorado, Florida, Hawaii, Indiana, Iowa,
Massachusetts, Nevada, Utah, and Wisconsin.6 Most of these
state laws invalidate any substantial restrictions placed on a
homeowner’s right to install solar energy devices.7
The
California law even defines an unacceptable restriction as one
that causes a cost increase or performance decrease by twenty
percent.8 These acts, and the related conflicts, represent a new
area of law where courts and other government entities are
forced to balance the economic and environmental goals of solarinstalling property owners pitted against neighboring property
owners’ dismay over the perceived aesthetic nuisance.
III. LEGAL CONFLICT RESULTING FROM INSTALLATION, OR
PROPOSED INSTALLATION, OF RESIDENTIAL SOLAR ENERGY
DEVICES
One state law that has only recently come to national
attention9 after being on the books for thirty years is the
California Solar Shade Control Act.10 This Act sought to protect
3.
4.
Id.
THOMAS STARRS, LES NELSON & FRED ZALCMAN, BRINGING SOLAR ENERGY TO
THE
PLANNED
COMMUNITY
7
(2008),
available
at
http://www.abcsolar.com/pdf/CC+Rs_and_solar_rights.pdf.
5.
INT’L ENERGY AGENCY [IEA], COOPERATIVE PROGRAMME ON PHOTOVOLTAIC
POWER SYSTEMS: NATIONAL SURVEY REPORT OF PV POWER APPLICATIONS IN THE UNITED
STATES OF AMERICA, 6 (Aug. 30, 2007), available at http://www.ieapvps.org/countries/download/nsr06/06usansr.pdf.
6.
STARRS ET AL., supra note 4, at 51, 55.
7.
Id.
8.
Cal. Civ. Code § 714(d)(1)(A) (West 2005), reprinted in STARRS ET AL., supra note
4, at 51.
9.
Paul Rogers, In Trees vs. Solar Fight, Trees Win, MERCURY NEWS, July 22, 2008,
at 1A.
10.
Solar Shade Control Act, Cal. Pub. Res. Code §§ 25980--25986 (West 1978);
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solar panels from sunlight reductions caused by vegetation and
trees.11
The enforcement of this law recently led the Santa Clara
Superior Court to order one California couple to trim down the
height of two redwood trees that were casting shade on a
neighbor’s solar panel.12 As a result of this case, a California
state senator has presented a bill to exempt all trees planted
prior to the installation of a solar panel.13
In contrast to the result in the California case, an Illinois
court found that the state’s Solar Energy Act did not create “a
new property right of solar access.”14 This decision was in
response to a suit by a solar unit’s owner to prevent his neighbors
from installing a second story on their residence because it would
shield his solar device from sunlight in the morning.15 The
Illinois law was not nearly as accommodating to solar devices as
the California Solar Shade Act, and, as noted by the Illinois
court, “a statute which attempts to establish an easement for
sunlight would be in derogation of the common law.”16
The two cases above are examples of the legal conflicts in
this area when a homeowner producing solar energy takes action
to ensure maximum recoverability of sunlight, but there are
many other instances where the battle is over whether a private
homeowner can install a panel in the first place. Neighboring
property owners attempting to disallow solar devices often use
the community association as the mechanism of influence.17 The
number of community associations has grown substantially in
the past forty years.18 These associations frequently require the
preservation of uniform aesthetic quality through the
implementation of architectural controls that are interpreted
initially by the developer and eventually by the homeowner’s
association and its committee for reviewing architectural
changes.19
While there is not much judicial history in the area of
ANDERS ET AL., ENERGY POL’Y INITIATIVES CTR., CALIFORNIA’S SOLAR SHADE CONTROL
ACT: A REVIEW OF THE STATUTES AND RELEVANT CASES 1 (2007), available at
http://www.sandiego.edu/epic/publications/documents/070123_SSCAPaperFINAL_01.pdf.
11.
ANDERS ET AL., supra note 10, at 1.
12.
Rogers, supra note 9, at 1A.
13.
Id.
14.
O’Neill v. Brown, 609 N.E.2d 835, 839 (Ill. App. Ct. 1993).
15.
Id. at 837.
16.
Id. at 839.
17.
STARRS ET AL., supra note 4, at 7.
Id.
18
19.
Id.
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homeowners contesting community association denials of their
request to install solar panels, a few cases that have emerged
offer a glimpse into the future of this area of litigation. A recent
Arizona case, Garden Lakes Community Ass’n v. Madigan, found
that the homeowner’s association restrictions “effectively
prohibited” the homeowners from installing solar devices on their
home.20 The court found that a homeowner’s association could
impose restrictions that would result in additional cost to the
homeowner, but that these costs could not be prohibitive to the
homeowner’s desire to install a solar fixture.21 The court also
found that an analysis of whether the cost was prohibitive could
include examining the “location, type of housing, and value of the
homes.”22 In Garden Lakes, the court ruled that the additional
costs that would result from the homeowner’s association’s
architectural restrictions would impose too great of a burden on
the homeowner.23
Similarly, in a Colorado case, the court found that a
homeowner’s association could not require the homeowner to
keep an evaporative cooler on the ground instead of on the roof
with the solar device because this would violate Colorado law,
which stated that homeowner’s associations could only require
“reasonable restrictions . . . which do not significantly increase
the price of the device.”24
In another California case, Palos Verdes Homes Ass’n v.
Rodman, the court found that a homeowner’s association’s
requirements for solar panels “were a reasonable restriction.”25
The court reached this decision because it determined that the
homeowner’s association did not cause an undue burden by
requiring a system that, according to expert testimony, was of
similar cost and quality.26
IV. FUTURE OF RESIDENTIAL SOLAR PANELS
Currently most photovoltaic solar systems have efficiency
However, new
ratings between ten and fifteen percent.27
20.
Garden Lakes Cmty. Ass’n v. Madigan, 62 P.3d 983, 989 (Ariz. Ct. App. 2003).
21.
Id.
22.
Id. at 987.
23.
Id. at 988.
24.
Governor’s Ranch Homeowner’s Ass’n, Inc. v. Gunther, 705 P.2d 1011, 1012
(Colo. App. 1985).
25.
Palos Verdes Homes Ass’n v. Rodman, 227 Cal. Rptr. 81 (Cal. Ct. App. 1986).
26.
Id.
27
Press Release, U.S. Dep’t of State, Solar Cells Increasing use of Electricity from
Sunlight (April 19, 2005), available at http://www.america.gov/st/envenglish/2005/April/20050419124501lcnirellep0.8711206.html.
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technology may be able to raise efficiency of these devices to over
fifty percent.28 New solar technology coupled with rising energy
costs from fossil fuels could spawn an explosion of growth in this
area stemming from economic motivations alone. Currently the
per capita solar footprint in the United States is 181 square
meters.29 This means that the United States would need to have
181 square meters of solar devices for each person to supply all of
the energy it uses.30 The current amount of space per capita of
roofs is sixty-five square meters, which could potentially account
for over one-third of the total energy production needed in the
United States if solar devices were installed.31
In 2004, solar energy only accounted for less than one-half
of one percent of the world’s energy supply while oil accounted for
a staggering 34.3 percent.32 Will solar panels in the residential
setting become a significant part of the United States effort to
reduce its dependence on oil? It is hard to say, because while
technology may lead to more cost-effective solar energy
production, it may also create or improve other renewable energy
sources so that solar is not a significant part of the renewable
energy framework. This area of law, where property law
intersects with environmental law, may become increasingly
important to property owners, whether motivated by economics
or the environment, if residential solar power becomes a major
player in the United States energy market.
Andrew B. Smith
28.
29.
Id.
NAT’L RENEWABLE ENERGY LAB., U.S. DEP’T OF ENERGY, THE REGIONAL PERCAPITA SOLAR ELECTRIC FOOTPRINT FOR THE UNITED STATES 13 (2007), available at
http://www.nrel.gov/docs/fy08osti/42463.pdf.
30.
Id. at 2.
31.
Id.
32.
INT’L ENERGY AGENCY [IEA], RENEWABLES IN GLOBAL ENERGY SUPPLY 3 (2007),
available
at
http://www.iea.org/textbase/papers/2006/renewable_factsheet.pdf.
Specifically, solar energy accounts for only 0.39 percent of the world’s energy supply. Id.